Labor & Collective Bargaining

Third Circuit Court of Appeals Decides Craig Becker's Appointment to NLRB Was Invalid

Howard Bloom — Mon, 20 May 2013 05:20:04 -0800

Author: Linda Carlozzi

On May 16, 2013, the United States Court of Appeals for the Third Circuit ruled that Craig Becker’s appointment to the National Labor Relations Board was invalid in NLRB v. New Vista Nursing and Rehabilitation, LLC, Nos. 11-3440, 12-1027 and 12-1936 (3^rd Cir. May 16, 2013).

The Court held that the Presidential recess appointment power is limited to breaks between sessions of Congress, not breaks within sessions. Therefore, the Third Circuit invalidated President Obama’s March, 2010 recess appointment of Craig Becker because it occurred during an intra-session period. (Becker’s term ran from April, 2010 to January, 2012.)

The Court’s reasoning followed the earlier D.C. Circuit Court ruling in Noel Canning. (For more information, see Recess Appointments at NLRB Unconstitutional, Federal Appeals Court Rules.) As a result of its determination that former-Member Becker’s appointment was invalid, the Third Circuit decision overturned the Board's ruling against New Vista Nursing and Rehabilitation because Member Becker was part of the three-member Board panel that had issued the decision. The Court noted the issue was a jurisdictional issue which it said could be raised at any time. Thus, this ruling potentially could impact any decision in which Becker participated in the Third Circuit. Based on this decision, in the Third Circuit’s view, the NLRB lacked a quorum since approximately August 2011.

After the Noel Canning decision, the NLRB has continued to issue decisions, stating that it was conducting “business as usual,” because (as noted by Board Chairman Pearce) the Noel Canning ruling applies only to one specific case in one Circuit. This case represents yet another hurdle for the NLRB and “business as usual.”

NLRB's Division of Advice Finds Direct Dealing in Workers Compensation Settlement Process

Howard Bloom — Fri, 17 May 2013 04:40:42 -0800

Author: Daniel Schudroff

Under the National Labor Relations Act, an employer is not permitted to bypass a union and deal directly with employees in connection with their terms and conditions of employment. This direct dealing concept can become complicated, however, when an individual employee asserts a legal proceeding against the employer in which the employee’s union is not a participant and is not involved in settlement negotiations.

Recently, the National Labor Relations Board’s Office of the General Counsel, Division of Advice, encountered this factual scenario in American Water Service Co., 15-CA-086838 (Div. of Advice, Apr. 30, 2013). In this case, an employee suffered a workplace injury and retained an attorney to seek worker’s compensation benefits. Over three years later, with the worker’s compensation action still pending, the employer discharged the employee. The employee’s union grieved the employee’s discharge. A month later, the employee settled the worker’s compensation claim with the employer, and as a term of the settlement, the employee signed a general release which forfeited her right to assert a claim against the employer in connection with her separation. The employer’s representative who typically handled union grievances was unaware of the worker’s compensation settlement and the employer’s worker’s compensation agent was unaware of the union’s grievance.

The Division of Advice preliminarily noted that the Act “requires an employer to attempt to afford the union notice and an opportunity to be present for settlement discussions regarding individual employee claims…, where the employer’s proposed settlement would effectively resolve the union’s grievance over the employee’s discharge.” Based on this standard, the Division of Advice found that the employer engaged in direct dealing, because, although the employer inadvertently failed to apprise the union of the settlement agreement, “the agreement on its face effectively settled the [employee’s] discharge allegation by precluding her from pursuing [sic] any claim arising from her employment.”

Ultimately, however, the Division of Advice recommended the Region dismiss the charge because the employer assured it would permit the union to arbitrate the employee’s grievance provided the union did not seek reinstatement or monetary considerations. Alternatively, the employer agreed to permit the employee to rescind the agreement so the union could seek a reinstatement and/or monetary remedy in arbitration.

This case demonstrates that employers must be mindful of their obligations to provide an employee’s union the chance to be present for settlement negotiations in connection with an individual employee’s lawsuit or administrative proceeding or else risk an unfair labor practice charge asserting unlawful direct dealing. In addition, this guidance highlights the importance of ensuring there is open communication between an employer’s various attorneys/agents who may be representing the employer in more than one forum with respect to the same employee.

D.C. Circuit Court of Appeals Strikes Down NLRB Posting Rule

Howard Bloom — Tue, 07 May 2013 15:22:29 -0800

Authors: Daniel Schudroff and Linda Carlozzi

On May 7, 2013, the National Labor Relations Board’s rule which would have required all employers covered by the National Labor Relations Act to post a notice informing workers of their rights under the Act was struck down by the U.S. Court of Appeals for the District of Columbia Circuit in National Association of Manufacturers v. NLRB, No. 12-5068. This is yet another blow to the NLRB; this Court recently ruled that President Barack Obama's January, 2012 recess appointments to the NLRB were invalid in the Noel Canning decision.

The NLRB regulation would have required all employers covered by the NLRA (approximately 6 million employers) to conspicuously post a notice informing employees of their right to organize as well as engage in other protected activities, and listing NLRB contact information.

The separate requirement under Executive Order 13496 for some federal contractors to post is unaffected by this ruling.

A link to the decision can be found here.

Complaint over Working in Unsafe Neighborhood Protected, NLRB Finds, Rejects Entrapment Defense

Howard Bloom — Fri, 03 May 2013 08:14:34 -0800

Employers may be interested in a recent post on the Jackson Lewis LLP Workplace Resource Center discussing a recent NLRB decision about protected concerted activity. Click here for more information.

ROC-Restaurant Worker Advocacy Group Failed to Report Lobbying Activities, Trade Group Alleges

Howard Bloom — Fri, 03 May 2013 07:40:19 -0800

Author: Linda R. Carlozzi

The Restaurant Opportunities Center (“ROC”), an organization that advocates for restaurant employees, is alleged to have failed to disclose its lobbying activities to the IRS as required by federal law, according to a restaurant trade group, “ROC Exposed”.

ROC Exposed alleges that ROC is a “union front” group, and has sent a formal complaint to the IRS requesting an investigation of ROC’s lobbying activities. In the complaint, ROC Exposed requests the IRS “to investigate whether the Restaurant Opportunities Center (“ROC”) engages in lobbying as a 501(c)(3) Public Charity, and is in noncompliance with IRS requirements.

Mike Paranzino, communications director for ROC Exposed, released the following in a press statement: “The Restaurant Opportunities Center has blatantly violated federal reporting requirements for lobbying activities in its pursuit of more and more anti-business mandates.” ROC hosts a “Counter Lobby Day” each year, in which ROC staffers and members meet with members of Congress and lobby for the organization’s preferred policies, aimed to benefit restaurant workers, including the WAGES Act, paid sick leave measures, and minimum wage legislation. ROC also lobbies for such initiatives at other levels of government, the anti-ROC group contends. “They have done all of this while reporting to the IRS that they do not lobby.” This means that the organization is in violation of IRS reporting rules as a nonprofit “Public Charity".

On its website, the ROC identifies the deputy director of food services for UNITE HERE, the hotel and restaurant union, among the organization’s 11-member board of directors.

According to ROC Exposed, “ROC is a labor union front group disguised as a restaurant industry employment center and watchdog.” ROC Exposed noted that in 2012, House Oversight Committee Chair Darrell Issa (R-Calif) launched an investigation into ROC’s activities and federal funding received by the organization from the Department of Labor.

It remains to be seen what will result from ROC Exposed’s complaint. If ROC Exposed is successful in its challenge to ROC, “worker advocacy” groups similar to ROC could come under closer scrutiny and challenge by other industry trade groups.

When Is a Recess Really a Recess? Writing the Next Chapter of the Noel Canning Saga

Howard Bloom — Fri, 03 May 2013 06:50:18 -0800

Author: Tom Walsh

As you read here last week, the National Labor Relations Board has asked the Supreme Court to review the decision in Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013). Noel Canning is the celebrated case in which the federal appeals court for Washington D.C. held that President Obama’s controversial 2012 NLRB recess appointments exceeded his constitutional authority.

The most important question presented is whether this presidential authority can be exercised only between formal sessions of the Senate, or whether any Senatorial “time off” constitutes an adequate recess. At the end of 2011, Senate Republicans avoided formal announcement of a recess. In early January, 2012, during a three-day break in the actual conduct of Senate business, President Obama announced the “recess appointments” of Sharon Block (D), Terence F. Flynn (R), and Richard F. Griffin (D) to the NLRB – circumventing the need for Senate approval of Board nominees. Noel Canning challenges the validity of those appointments.

This case holds great interest not only to the labor law community, but also to the public-at-large because of the strategic political importance of the presidential recess appointment.

As crucial as this case is to the NLRB (every case since January 2012 – and possibly longer – runs the risk of being nullified), and as serious as the question it poses about presidential power , the Supreme Court is not required to hear it. The Court has broad discretion to choose the cases it wishes to hear. Here, however, the Board’s petition to the Court cites the 11th Circuit’s decision in Evans v. Stephens, 387 F.3d 1220 ( 2004), which on generally analogous facts held a judicial recess appointment valid. The existence of apparently conflicting decisions between or among appeals courts is referred to as “a split in the circuits” – a traditional basis for Supreme Court consideration. Commentators expect the Court will agree to hear the case.

The question is a difficult one: the constitutional language is vague, the circumstances giving rise to the provision are dated, and the power has been used inconsistently. However, the D.C. Circuit’s decision captured the imagination with its now-famous observation that the White House’s interpretation would “demolish the checks and balances inherent in the advice-and-consent requirement” and would allow the President “to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction.”

Add to this the complication that the President now has formally nominated five individuals for full terms on the Board, including those now serving the disputed recess appointments. Action on these nominations is stalled as Senate Republicans contend that the current recess appointees should cease serving. It may be that no action will be taken, and that all Board decisions will be suspect until the Supreme Court rules.

A Harbinger? National Labor Relations Board Awards Medical Expenses

Howard Bloom — Fri, 03 May 2013 06:46:56 -0800

Author: Tom Walsh

The NLRB’s recent decision in Norquay Construction, Inc., 359 NLRB No. 93 (April 15, 2013) has caused some concern. Some of the facts in Norquay are somewhat unusual: a union agent who wanted to uphold so-called “area standards” and was being ejected from the employer’s construction site was found to have fallen down stairs upon being pushed by an employer agent. At trial, the Administrative Law Judge decided that while pushing the agent may have been an unlawful act, it was not specifically an unfair labor practice under the National Labor Relations Act. The Board reversed the ALJ, finding the NLRA’s protection extends to union agents acting to uphold area union labor standards, and thus, the employer’s conduct was an unfair labor practice.

This conclusion is not the surprising part of its decision. The surprising aspect to many Board observers is that the remedy imposed by the NLRB for the employer’s putative assault included not only back pay, but also medical expenses “if it is shown… that [the union agent] incurred medical expenses and suffered a loss of pay and benefits as a result of the unlawful assault.” Such a remedy, while not unheard of, is rare. The ALJ made no findings as to whether the union agent was injured and, as a result, about whether he lost wages or benefits. The Board ordered that these be determined through the post-case NLRB compliance process. If it is found that union agent incurred medical expenses, they will be awarded.

The employer argued that an award of medical expenses would be inappropriate. The NLRB, mindful that this remedy is suspiciously close to a tort remedy, cited two of its decisions to explain why an award of medical expenses is an appropriate remedy. In Freeman Decorating Co., 288 NLRB 1235 (1988), the Board acknowledged it does not award tort remedies. Instead, medical expenses awarded under the Act are not for physical injuries suffered, but for reimbursement of medical and rehabilitative expenses not covered by insurance. (In Freeman, the individual who had been discriminated against was an employee who had been unlawfully discharged and lost insurance coverage.)

The Board also cited Nortech Waste, 336 NLRB 554 (2001). That case also involved an employee. The employee had been discriminatorily assigned to a less-desirable job and suffered an injury at that job. The NLRB ordered the employer to provide backpay, lost benefits, and medical expenses up to the time when she was medically released to return to work. The Board explained its “prior reluctance” to award medical expenses thusly: while tort remedies for “nonspecific” personal injuries like pain and suffering are within the expertise of state tort actions, medical expenses arising from the employer’s discriminatory acts “are specific and easily ascertained.”

As noted above, while the Board’s award of medical expenses to the union business agent may raise eyebrows, it is not without precedent. It is, however, a potential red flag to employers. Because of the NLRB’s expansive view of remedies, it is possible that we may see a rise in allegations by employee-charging parties of physical or emotional harm in Board unfair labor practice charges. This could result in awards of medical expenses not being rare at all.

NLRB Files Petition for Writ of Certiorari in Noel Canning

Howard Bloom — Fri, 26 Apr 2013 08:13:04 -0800

Author: Howard Bloom

Yesterday, as expected, the National Labor Relations Board filed its petition for a writ of certiorari in National Labor Relations Board v. Noel Canning, A Division of the Noel Corp, et al. in the United States Supreme Court. A copy of the petition is here.

NLRB's Division of Advice Spells Out Lawful Investigations Rule

Howard Bloom — Fri, 26 Apr 2013 07:06:13 -0800

Author: Howard Bloom

Many employers maintain rules in their employee handbooks and/or personnel policies governing how investigations of possible employee misconduct will be handled. Such rules often include admonishments to employees about maintaining the confidentiality of the investigation and, therefore, they implicate Section 7 of the NLRA and protected concerted activity. Indeed, in Banner Health, 358 NLRB No. 93 (2012), the NLRB held that a blanket rule prohibiting employee discussions of ongoing investigations is invalid because it does not take into account the employer’s burden to demonstrate a particularized need for confidentiality in any given situation. Thus, an employer must “determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, and there [was] a need to prevent a cover up.”

Since Banner Health, employers have struggled to find wording for their investigations rules that passes legal muster while conveying the clear message that confidentiality is a possibility. Fortunately, the NLRB’s Division of Advice has provided some new guidance that helps clarify the situation.

A union filed an unfair labor practice charge at a Regional Office of the Board against an employer, alleging the employer’s investigations rule was unlawful. Following investigation of the charge, the Regional Office asked the NLRB’s Division of Advice for an opinion whether or not to issue a complaint. The Division decided a complaint should be issued alleging the rule was unlawful. The Division also set forth the following wording of a lawful investigations rule:

[Employer] has a compelling interest in protecting the integrity of its investigations. In every investigation, [Employer] has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up. [Employer] may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence. If [Employer] reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

Although Division of Advice decisions are not binding on the five-member NLRB, those decisions serve an important function in the processing of unfair labor practice charges. They weigh heavily in regional officials’ decisions to issue unfair labor practice complaints (or dismiss charges) in the absence of a definitive Board decision. Few unfair labor practice charges are referred to the Division for review by Regional Offices, but those Regional Offices are well aware of the Advice Memoranda issued by the Division. Therefore, an employer that adopts the rule set forth above, deemed lawful by the Division, is much less likely to face a complaint from a Regional Office.

Noel Canning: Congress Enters the NLRB Fray

Howard Bloom — Wed, 24 Apr 2013 14:57:10 -0800

Author: Howard Bloom

The NLRB’s petition to the United States Supreme Court for review of Noel Canning is due April 25. The Supreme Court will be the most important battleground for resolution of the question whether President Barack Obama’s recess appointments of NLRB Members Sharon Block, Richard Griffin and former-Member Terence F. Flynn were constitutional.

Even after the petition for review is filed, other skirmishes over the appointments will continue. A number of them are being fought now. For instance, in a case involving Laboratory Corporation of America, the U.S. District Court for the District of Columbia recently transferred a Noel Canning dispute to the federal District Court in New Jersey based on a request by the NLRB. See Noel Canning Update: NLRB Fights Back. Now, Congress has entered the fray as a bill prohibiting the NLRB from acting at this time makes its way from the U.S. House of Representatives to the Senate.

The House passed H.R.1120, the “Preventing Greater Uncertainty in Labor-Management Relations Act,” by a 219-209 vote. The bill states, “The Board shall not appoint any personnel, nor implement, administer, or enforce any decision, rule, vote, or other action decided, undertaken, adopted, issued, or finalized on or after January 4, 2012, that requires a quorum of the members of the Board. ” These prohibitions would cease when one of three circumstances exists: (1) the NLRB has a quorum consisting of Senate-confirmed members; (2) the Supreme Court issues a decision on the validity of the disputed recess appointments; or (3) a sine die adjournment (an adjournment without another date or time to meet having been set) of the first session of the 113^th Congress. (The sine die adjournment of the first session of the 113^th Congress would mark the end of the recess appointments of Members Block and Griffin.) Except where the prohibitions terminate because of a Supreme Court decision, the bill also would require a Senate-confirmed quorum of the Board to act upon any of the decisions the Board made when the recess appointments were in question before those decisions may be enforced.

The bill is largely symbolic – another example of Republicans’ disdain for the current NLRB and how the White House has handled the Board nomination process. It is not expected to pass the Senate, and, in the unlikely event it does, President Obama has made it clear he will veto it.

The battle rages on.

Union Withdraws Support for Affordable Care Act

Howard Bloom — Mon, 22 Apr 2013 03:54:54 -0800

Author: Howard Bloom

The United Union of Roofers, Waterproofers and Allied Workers, which endorsed President Barack Obama in 2008 and 2012 and helped get health care reform passed in Congress, now is calling for repeal of the Affordable Care Act (ACA).

Kinsey M. Robinson, Roofers Union President, issued the following statement:

"Our Union and its members have supported President Obama and his Administration for both of his terms in office.

But regrettably, our concerns over certain provisions in the ACA have not been addressed, or in some instances, totally ignored. In the rush to achieve its passage, many of the Act's provisions were not fully conceived, resulting in unintended consequences that are inconsistent with the promise that those who were satisfied with their employer sponsored coverage could keep it.

These provisions jeopardize our multi-employer health plans, have the potential to cause a loss of work for our members, create an unfair bidding advantage for those contractors who do not provide health coverage to their workers, and in the worst case, may cause our members and their families to lose the benefits they currently enjoy as participants in multi-employer health plans.

For decades, our multi-employer health and welfare plans have provided the necessary medical coverage for our members and their families to protect them in times of illness and medical needs. This collaboration between labor and management has been a model of success that should be emulated rather than ignored. I refuse to remain silent, or idly watch as the ACA destroys those protections.

I am therefore calling for repeal or complete reform of the Affordable Care Act to protect our employers, our industry, and our most important asset: our members and their families."

Other unions, including the International Brotherhood of Teamsters, the United Food and Commercial Workers International Union and Unite HERE, also have expressed dissatisfaction with the ACA. Could their calls for repeal be next?

Labor Union Membership Not Immune to Job Losses

Howard Bloom — Wed, 17 Apr 2013 09:56:48 -0800

Author: Tom Walsh

Many of the nation’s largest unions lost significant membership in 2012, according to annual financial disclosure reports filed with the U.S. Department of Labor, Bloomberg/BNA’s Daily Labor Report has reported. The 2012 reports show the following:

Membership Losses Among Ten Largest U.S. Unions

Union	Membership Decline	Change
National Education Association (NEA)	99,175 to 3.1 million	-3%
International Brotherhood of Teamsters	51,924 to 1.3 million	-4%
Service Employees International Union (SEIU)	44,960 to 1.9 million	-2.3%
American Federation of State, County and Municipal Employees	37,288 to 1,386,296	-2.6%
American Federation of Teachers (AFT)	25,131 to 848,323	-2.9%
United Food and Commercial Workers	13,102 to 1,272,313	-1%
Laborers International Union of North America (LIUNA)	8,422 to 571,065	-1.5%
International Association of Machinists	4,033 to 576,947	-.7%

Source: U.S. DOL

The biggest losses were sustained by the NEA, just shy of 100,000 members. The smaller AFT lost about 25,000 members. The losses by these educator unions likely reflect the crisis in public education funding. Similarly, AFSCME (representing mainly public sector employees) lost 37,000 members (about 2.5%) in 2012. Given the budgetary drawback in public employment, this reduction is not surprising.

The SEIU – an organizing powerhouse recently – took its first membership hit in years, down 45,000, likely stemming from job losses in the health care and building services industries.

Food industry union UFCW reported a 13,000 membership loss, continuing a decline that began in 2002. UFCW complained that several unionized chains closed stores or downsized.

The Machinists Union blamed its losses on the globalization of manufacturing – something it can hardly control. The Laborers Union similarly faulted the recession’s lingering effects on the construction industry. However, LIUNA has lost 269,000 members or 32% since 2003, perhaps reflecting a downward trend overall.

Down, but Definitely Not Out

The International Brotherhood of Electrical Workers – representing electricians and manufacturing employees – added almost 5,000 members. It credits this gain to a renewed vigor in organizing. The United Steelworkers (nowadays, a collection of smaller unions in an array of industries: from metals and chemicals to paper and pharmaceuticals, among others) increased membership by more than 7,000 members. The United Auto Workers, benefiting from a rebound in the auto industry, also had a modest increase in membership.

While unions nationally have declined dramatically in the last 60 years, the downward trend has slowed. As employment levels increase, union membership may rise, too, despite softness in the job market from the recession.

Unions have become smarter about where they choose to organize – looking for workplaces with employee issues that can be exploited. Therefore, employers should not assume “it can’t happen here.” Complacency means vulnerability to union organizing.

OSHA Invites Union and Community Organizers into Non-Union Worksites

Howard Bloom — Tue, 16 Apr 2013 06:54:05 -0800

Author: Roger Kaplan

Organized labor may be very pleased with the Occupational Safety and Health Administration these days because of a recent Agency interpretation that a non-union employee may select a non-employee who is “affiliated with a union” or with a “community organization” to act as his representative during an OSHA inspection of his employer’s worksite. The interpretation came in a response to a letter from a health and safety specialist for the United Steelworkers on February 21, 2013. The interpretation could be used by unions, their supporters and “salts,” as an invitation to trigger OSHA inspections at targeted union-free facilities for the purpose of gaining access for organizing, with OSHA’s help. (A “salt” is a union infiltrator sent to work at a non-union employer with the objective of organizing its employees.)

The Agency seized on language in the OSH Act [Section 8(e), 29 USC § 657(e)] that “a representative authorized by [the employer’s] employees” may accompany an OSHA compliance officer on his or her inspection. This may be stretching the statute too far, in our view . OSHA regulations interpreting this provision (29 C.F.R. §1903.8) contemplate that such a representative “shall be an employee(s) of the employer.” The same regulations appear to use the “representative authorized” phrase to mean an “authorized representative of employees,” as well. The latter expression is indistinguishable from “authorized employee representative,” used elsewhere in OSHA’s rules to mean “an authorized collective bargaining agent of employees.” (See Recordkeeping Rule, 29 C.F.R. §1904.35). A stranger-union organizer is neither an employee of the employer nor an authorized collective bargaining agent of its employees.

The regulations allow an OSHA compliance officer, for “good cause,” to be accompanied by a third-party who is not an employee, but the examples offered include “an industrial hygienist or a safety engineer” – not union business agents and organizers – and there are plenty of technical specialists available to OSHA who are not affiliated with unions. OSHA’s Field Operations Manual, also mentioned by OSHA in its February 21 interpretation, was revised during the Obama Administration to remove a Clinton-era restriction that employee representatives during inspections on non-union worksites had to be members of a workplace safety committee or an individual employee selected by his/her coworkers for the purpose. It also withdrew a 2003 OSHA interpretation rejecting the right of a non-employee who files an OSHA complaint to participate in the resulting OSHA inspection -- to avoid confusion, it said. Compliance officers have discretion as to who may accompany them on an inspection, but it is unclear what guidance they will take from this letter.

With its questionable spin on statutory and regulatory language, OSHA joins the NLRB in laying out a welcome mat for union organizers at union-free plants. Unions may say this interpretation is nothing new, but we are not so sure. Non-union employers may have to weigh carefully whether to allow non-employee union or community organizers on their premises during OSHA inspections or to refuse them access and risk citations and penalties.

Noel Canning Update: NLRB Fights Back

Howard Bloom — Mon, 15 Apr 2013 09:25:28 -0800

Author: Howard Bloom

NLRB authority is being challenged on several fronts following Noel Canning (for details on this decision, see RECESS APPOINTMENTS AT NLRB UNCONSTITUTIONAL, FEDERAL APPEALS COURT RULES. The following case, involving a representation petition filed at the NLRB by a union seeking to represent a group of an employer’s employees, is just one example.

District 1199J of the National Union of Hospital and Health Care Employees petitioned the NLRB’s New Jersey Regional office (Region 22) to represent all full-time and regular part-time patient service technicians working in several locations of Laboratory Corp. of America Holdings. At the Board hearing, the Company moved to dismiss the petition, citing the District of Columbia Circuit Court of Appeal’s Noel Canning decision. The Court had held the recess appointments of three members of the NLRB were unconstitutional and invalid, and therefore, the NLRB did not have the authority to act. The Regional Director refused to dismiss the petition and directed an election.

The Company then sought to enjoin the NLRB in the United States District Court for the District of Columbia, again citing the appeals court’s Noel Canning decision. The NLRB responded by requesting the injunction case be heard in New Jersey federal district court instead. On April 4, 2013, District of Columbia United States District Court Judge Reggie B. Walton granted the NLRB’s request and transferred the case to the federal court in New Jersey.. The Judge noted that “there is a strong local interest in having the controversy decided in the district of New Jersey, where the affected employees are located.”

Not surprisingly, the NLRB viewed the District of Columbia federal court as unfriendly to its contention that Noel Canning was wrongly decided. Indeed, since that case was decided by the Court of Appeals for the District of Columbia, the lower federal court there is bound by the Noel Canning decision.

This case is an example of the challenges employers are raising to NLRB authority since Noel Canning was decided. It remains to be seen how the New Jersey federal court will rule on the ultimate issue – whether the Regional Director’s denial of Laboratory Corp.’s Motion to Dismiss and his direction of election are valid. However, one thing is certain -- there will be many more challenges to the NLRB’s authority in the wake of Noel Canning.

Union Information Requests: Is Nothing Sacred?

Howard Bloom — Mon, 15 Apr 2013 09:16:21 -0800

Author: Tom Walsh

One of the first things a newly-unionized employer learns about collective bargaining is that the NLRB gives the union broad rights to demand (and receive) sensitive and even confidential information regarding the company’s business. Disclosure is required if the requested information is relevant to performance of the union’s responsibilities as the employees’ bargaining representative – even if that relevance is only “probable” or “potential.”

Petaluma Valley Hospital, NLRB Case 20–CA–88742 (March 26, 2013), offers a recent example how this happens to a health care employer. The union informed the hospital it would call a one day strike 12 days hence (advance warning of a strike is required only in the health care industry). A one day strike is a common tactic for a health care union – striking members lose only a day’s pay, but the hospital either must succumb to union bargaining demands or find replacement staff to meet patient care needs. Replacements, however, often are available from a temporary agency only for a minimum of several days – in this case, apparently, five days. Thus, the hospital told the union it could not permit the strikers to return to work for five days once they struck. (The engagement of temporary replacements represents a cost, but it can also serve as an employer’s counterbalance to the one-day walkout – employees who may be willing to forego one day’s pay may not want to lose five.)

The union demanded, among other things, a copy of the hospital’s temporary staffing contract, as well as any notes or correspondence regarding its negotiation by the hospital. The union claimed the information was needed in order to “evaluate” the employer’s statement that it had to guarantee the temporary agency five days of work. The hospital objected on several grounds, claiming (not surprisingly) that the union sought “confidential and proprietary business and/or financial information” and that the staffing contract was not relevant to the union because it did not relate to the terms and conditions of employment of unit employees.

The Board's administrative law judge found that the union’s request for the contract was relevant and necessary to its representation of employees because it was entitled to verify the employer’s representations – was there really a five day minimum in the contract? Moreover, the request for details concerning the hospital’s negotiation of the staffing contract was relevant to determining whether the five day minimum actually was a condition precedent imposed by the staffing company (or a strategic ploy by the employer).

The judge gave other reasons for his decision, as well, but the takeaway here is that Board law tilts decidedly toward mandating the disclosure of information an employer would naturally view as private. The ALJ gave short shrift to the hospital’s protestations that the information was “confidential and proprietary,” calling them merely “bare assertions.” The employer, said the judge, made no effort to “narrow the scope of the Union's request for information; nor did it discuss its confidentiality concerns, or possible methods of alleviating them.” While an appeal to the Board and a different result are possible, the judge's rationale is not inconsistent with recent NLRB decision-making.

An employer entering into collective bargaining should recognize that unions often use information requests for strategic reasons: to obtain sensitive information or merely to burden the company with time consuming demands. Refusals to respond can result in unfair labor practice charges being brought against the company.

An employer needs to prepare to deal with a union’s information requests, and perhaps even serve its own demands for information on the union. The information request stratagem is often not foreseen by employers. It is one of the reasons an employer should have a comprehensive plan for dealing with union negotiations – one that is not limited to conduct at the bargaining table alone.

JACKSON LEWIS has presented many programs across the country and on-line to assist employers facing new and difficult collective bargaining negotiations, emphasizing ways they can advance management interests. Check our website to learn of programs, including webinars, that may help you in meeting these challenges successfully.

President Obama Nominates Three to Labor Board

Howard Bloom — Tue, 09 Apr 2013 16:08:27 -0800

Author: Howard Bloom

President Barack Obama today announced his intent to nominate current National Labor Relations Board Chairman Mark Pearce, as well as two newcomers, Harry L. Johnson III and Philip A. Miscimarra, as Members of the NLRB. Pearce, who has been the Board's chairman since August 2011 and a member of the NLRB since March 2010, is a former union attorney, while both Johnson and Miscimarra are employment lawyers representing employers.The nominations require Senate confirmation.

In February, the President had also nominated Democrats Sharon Block and Richard Griffin to full terms on the Board. Block and Griffin, along with former Board Member Terence Flynn, are at the center of a controversy over whether Obama’s recess appointment of the three was valid. They have been Board Members since January 2012. See, Recess Appointments at NLRB Unconstitutional, Federal Appeals Court Rules.

In a press release from the White House, President Obamasaid, “I am pleased to nominate these individuals to serve on the National Labor Relations Board. By enforcing workplace protections, upholding the rights of workers and providing a stable workplace environment for businesses, the NLRB plays a vital role in our efforts to grow the economy and strengthen the middle class. With these nominations there will be five nominees to the NLRB, both Republicans and Democrats, awaiting Senate confirmation. I urge the Senate to confirm them swiftly so that this bipartisan board can continue its important work on behalf of the American people.”

Fifth Circuit Pressed to Join Growing Court Rejection of NLRB's D.R. Horton Decision

Howard Bloom — Mon, 08 Apr 2013 14:07:24 -0800

Author: Tom Walsh

As we previously reported in this Blog, one of the more expansionist – and controversial – NLRB decisions of 2012 was D.R. Horton, 357 NLRB No. 184, in which the Board held that employers may not require as a condition of employment that employees agree to a blanket waiver of rights to pursue their employment claims by means of class actions. The Board permitted waiver of class and collective actions in employment arbitrations only where the employer permitted employees to bring these actions in court.

Needless to say, D.R. Horton is of great concern to the employers and has caused a wave of litigation. Leading the charge is D.R. Horton’s own challenge to the Board’s decision in the 5th Circuit Court of Appeals (New Orleans). D.R. Horton, Inc. v. NLRB, No. 12-60031. Oral argument was heard in February. The employer contended (among other things) that the NLRB decision was inconsistent with federal law and Supreme Court precedent. Further, D.R. Horton argued that in the 13 months since the Board’s decision was rendered, no less than 26 different courts expressly rejected the Board’s reasoning.

According to D.R. Horton, six more courts have rejected the Board’s decision in the month since argument was heard. These courts include a state court and two federal courts in California, two federal courts in New York, and one in Tennessee.

Adding to D.R. Horton’s case against the Board is the D.C. Circuit’s decision in Noel Canning v. NLRB, 2013 WL276024 (D.C. Cir. Jan. 25, 2013). The D.C. Court found President Barack Obama’s recess appointments to the Board to be unconstitutional, indicating its actions depend upon the presence of those appointees, including the decision in D.R. Horton, to be ineffective. D.R. Horton has urged the 5th Circuit to adopt the Noel Canning rationale and thus find the Board lacked a quorum to even issue the decision in its case.

D.R. Horton’s prohibition of most collective action waivers and the recess appointment/NLRB quorum controversy are often mentioned by commentators as examples of overreaching by the White House and the current Board. Regardless of your views, it makes this case one of extraordinary interest. Keep reading this Blog or sign up for Jackson Lewis e-mail alerts to get the latest news about the 5th Circuit’s eagerly awaited decision and other important labor law developments.

Collectively Bargained Wage Increases Rise, but Remain Below Former Levels

Howard Bloom — Mon, 08 Apr 2013 13:57:55 -0800

Author: Tom Walsh

One of the functions of experienced collective bargaining agreement negotiators and human resources professionals in unionized and union-free companies is to keep abreast of the labor market conditions locally and within his or her client’s industry. In unionized companies, having this information will assist these individuals in recommending a considered course of action at the bargaining table. In a union-free organization, the information will help in developing strategy to pay its employees competitively. There are numerous sources of information available for review, including the U.S. and state departments of labor. Another source is Bloomberg BNA, which publishes detailed analyses of collective bargaining agreement settlements. Recently, Bloomberg BNA published findings regarding wage increases in labor contracts negotiated in the first quarter of 2013.

The survey found the current first-year median wage increase to be 2%. This reflects a rebound from the last few years in which the first-year increases were 1.6% (2010), 1.4% (2011), and 1.9% (2012). For several years prior to 2010, the median first-year increase was a consistent 3%. The significant decrease in 2010 followed the downturn in the national economy. The slow rise likewise follows the slow recovery since then.

The rise in median wage increases isn’t the whole story. Often, parties negotiate lump sum bonuses in place of wage increases (in whole or in part). The Bloomberg BNA survey factored those in as well. When these bonuses are considered, the “weighted average” increases show an overall first-year increase of only 1.6%.

These numbers reflect the national trend. There are significant differences between regions and among the various industries. Of course, private-sector collective bargaining agreements are not required to be published; surveys rely on contracts made available to the researchers by the parties. Nonetheless, these surveys provide a window on trends affecting employers and the unions with which they negotiate. Clearly, employers are reluctant to return to higher increases.

There are many factors affecting an employer’s wage determinations. Currently, anecdotal evidence suggests concerns over the cost of health insurance, and those arising from the Affordable Care Act in particular, continue to depress wages. Whether an employer is bargaining collectively over wages or not, it is important for it to obtain as much information as possible in order to make an educated decision over the wage increase, if any, it intends to give.

Will High Court Put to Rest Labor Board Recess Appointments Controversy?

Howard Bloom — Fri, 05 Apr 2013 03:57:36 -0800

After the D.C. Circuit held the recess appointments to the NLRB unconstitutional (Recess Appointments at NLRB Unconstitutional, Federal Appeals Court Rules), we began to speculate about the Board’s next move. The Board is now appealing that ruling to the U.S. Supreme Court. Read about it at Healthcare Workplace Update: NLRB Recess Appointment Question to be Appealed to U.S. Supreme Court.

RECESS APPOINTMENTS AT NLRB UNCONSTITUTIONAL, FEDERAL APPEALS COURT RULES

Howard Bloom — Fri, 25 Jan 2013 12:11:00 -0800

National Labor Relations Board Members Sharon Block, Richard Griffin, and former Member Terence F. Flynn were not properly named to the Board as recess appointees by President Barack Obama at the beginning of 2012, the U.S. Court of Appeals for the District of Columbia Circuit has ruled. Noel Canning v. NLRB et al., Nos. 12-1115 and 12-1153 (D.C. Cir. Jan. 25, 2013). The three-judge panel said President Obama did not have the power to make the three recess appointments to the Board because the Senate was officially still in session at the time. This decision casts doubt upon the validity of numerous Board decisions (including two in which the Board overruled its longstanding precedent) and other actions in which the appointees have participated.

See Recess Appointments at NLRB Unconstitutional, Federal Appeals Court Rules for a more extensive discussion of this important decision. In the meantime, please feel free to contact the attorney with whom you regularly work.